The Portland daily press., 1887-06-30
LIauor IN orIglnaI Packagee.

Liquor in Original Packages.
The arrestof Michael Burns Of Augusta I'm
der the prohbitory law will probably bring
before the Supreme Court of the United
States for final decision the question Of the
right of State to forbid the importer of in
toxicating liquors to sell them in the origi-
nal packages 1t is admitted, we believe,
that the liquors that Burns sold were imported
10y himself from foreign country, and that he
has not sold them out Of the original packages.
1t has been the common impression in this
State that the sale of imported liquors in the
original packages by the actual importer was
not a violation of the prohibitory law. In the
prohibitory statute imported liquors in the
original packages are not directly excluded
Yet the statutes seem to assume that such
liquors are exempt inasmuch as they provide
that custom house certificates of importation.
and proofs of marks on the casks and pack
ages corresponding thereto, shall not in pre-
ceedings under this chapter. be received as
evidence that the identical liquors contained
in said casks or packages were actually im-
ported in said c2sks or packages" provis-
ion that would have been meaningless had it
not been considered by the legislature that
mported liquors in the original packages
ii on different footing from liquors of
domestic manufacture.
The question has never been directly
decided by the Supreme Court of this State,
but in the ease of State against Robinson
which is reported in the forty-ninth of
Maine the court used this language.
Among the liquors seized were four baskets of
champagne wine, which witness for the libel-
min INN
ed and he further testified that he believed thea
to be IN original packages. and that they had new
they were imported undeI.the revenue laws OF the
United States and were original packages UNI
opened, and the claimant intended TO sell them in
lhls state in such packages, and not otherwise,
lie had shown no right TO do so, and that such q
sale, upon the evidence in this case, would be in
violation OF law. Upon this point the line OF dlyl-
sion between the power of the federal government
aud that of the State, has been settled Under
the power granted by the constitution 10 regulate
commerce with other nations, Congress may au-
thorize person to import intoxicating liquors,
and 10 sell the same in the original packages But
here the power OF Congress ceases and the jurlS
diction Of the state begins. No one but tie i'm
porter himself has the right to sell, except as
only in the original packages The power OF the
state IS plenary to regulate or prohibit all sales,
except such as are thus made by the importer
himself. Those who purchase from him have
such right to sell.
This was but dictum of the court, and of
course does not have the force of a decision,
but yet it seems to show that the justices of
the Supreme Court of Maine then regarded
it as settled that the State could not prohbit
the sale by an importer of the liquors he him
self had imported provided they were sold
in the original packages.
The case which the Maine justices relied on
was the case of Brown and others, plaintiffs
in error, VS.. The State of Maryland, defend
ants in arrOr Rratuf xpoc indicated p,,Jor n
law of Maryland, which provided that all i'm
porters offoreign articles, or commodities, or
dry goods, wares, or merchandise, by bale or
re, or of wine, rum, brandy, whiskey,
distilled spirituous liquors, should,
-.---, re authorized to sell, take out
| which they should pay $50.
He was an importer of dry goods. 1t was
insisted before the Supreme Court of the
United States that this act was repugnant
totwo provisions Of the constitution, namely,
the provision forbidding the State to lay du-
ties on imports without the consent of Con-
gress, and the provision that declares that
Congress shall have the power TO regulate
commerce with foreign nations. 1t was re-
piled that this license was not duty because
it was not laid on the act Of Importation
But Chief Justice Marshall who delivered
the opinion of the court, said that as inn
ports are things imported, a duty on imports
was duty on things imported, and not mere
ly on the act of importation, and that while
the thing remained the property Of the i'm
porter, in his warehouse, in the original form
or package in which it was imported, a tax
upon it was too clearly duty on imports to
escape the prohibition in the constitution"
In ofro fbn a., A.
port goods obtained by the payment of the
duties carried with it the right to dispose of
the goods. The court also held that this law
was repugnant to the provision of the con-
stitution comforting upon Congress the pow
er to regulate commerce as "any penalty in
flcted on the importer for selling this article.
in his character of importer must be in oppo-
sition to the act Of Congress which authorizes
Importation" The court, however, carefully
limited the principle laid down to the sale Of
tile article in the form imported by the inn
porter If broken mp or separated and dis
posed Of piecemeal blythe importer, then the
principle did not apply; neither did it APP
ply after it had passed out Of the importers
hands, no matter if the packages had not
been broken.
Mr.. Justice Thompson dssented from
this opinion.
This case was decided in 1927. In 1876
substantially the same question was dis
cussed by the court and nearly all the judg-
es wrote elaborate opinions. 1t was raised
by case under chapter of the Revised
Statutes of Massachusetts regulating the
sale Of intoxicating liquors. Chief Justice
fancy held that this chapter "did not inter
for Nyif ba in
the article remained part of foreign COM
merce, and was in the hands Of the importer for
sale, in the cask or vessel in which the laws
of Congress authorize it to be imported"
and Therefore he declared that it was not
unconstitutional But he very clearly indi-
Gated that law that interfered nth the sale
of imported liquor by the importer in the
original packages would be in excess of the
powers of the State. This was his language:
Adopting the rule as laid down in Brown VS..
Inc state oi Maryland, proceed 10 apply IL To
the case Of Massachusetts. The laws Of Congress
regulating foreign commerce authorize the i'm
portatlon OF spirits, distilled liquors, and brandy
in casks or vessels NOT containing less than A
certain quantity specified In the laws upon this
subject. Now, if the State law in question came
in collision with those acts Of Congress, and pre-
vented or DISTRACTED the Importation or sale of
these articles by the Importer in the original cask
or vessel in which they were imported it would
be the duty of this court to declare them void
1t has, indeed been suggested, that. if a State
deems the traffic in ardent spirits be Injurious
10 It's citizens, and calculated 20 induce immoral,-
ty, vice, and pauperism into the State it NAV cor
sttutionally refuse to permit its Importation not
outstanding the laws of Congress and that a
State may do this on the same principles that if
may resist and prevent the Introduction of dis
ease, pestllenee or pauperism from abroad Bat
II must be remembered that disease pestilence
ana paupeTism are not subjects of commerce. al
though sometimes among its attendant evils
They are not things 10 be regulated and traffcked
IN, but TO be prevented, far as human foresight
or human means can guard against them But
spirits and distilled liquors are universally adj.
mllted 10 be subjects of ownership and property
and are therefore subject to exchange barter
and traffic, like any other commodity IN which n
right OF property exists And Congress- under IFS
general power TO regulate commerce with foreign
nations may prescribe what articles OF merchan-
disc shall be admitted, and what excluded; and
may therefore admit, not as il shall seem
best; the importation of ardent spirits. And mas
much as the laws of Congress authorize their i'm
portaton, no State has right to prohibit their
Introduction"
Mr. Justice Mclean agreed substantially
with the Chief Justice. He said:
The license acts of Massachusetts do not pur-
port to be a regulation Of commerce. They are
essentially police laws Enactments similar in
principle are common TO all the States Since
the adoption Of the constitution they have pvisa1